McCready campaign, NCSBE call for Harris petition to be dismissed

McCready campaign, NCSBE call for Harris petition to be dismissed
Mark Harris, left, and Dan McCready. (Source: WECT)

RALEIGH, NC (WECT) - Wake County Superior Court has not set a date to hear a petition from Republican Mark Harris but the stage is set for one.

Harris asked the court to force the hand of the North Carolina State Board of Elections (NCSBE) to certify him as the winner of the 9h Congressional District, which he unofficially won by 905 votes.

The Harris campaign contends the board “neglected” its duty in not certifying him and produced no evidence in its investigation into election fraud to justify its actions.

On Monday, the campaign filed a brief with the court arguing the same, though adding a line saying if the board cannot certify the race immediately, that it do so as soon as possible. The board in its nine-member iteration was dissolved on Dec. 28.

The NCSBE and Democrat Dan McCready’s campaign also filed briefs Monday at the court’s request. Both rebut Harris' argument and argue there is no “clear legal right” Harris has to demand he be certified.

They also argue that the Harris campaign has not established the five requirements to obtain a Writ of Mandamus, as he requested on Jan. 3.

“A writ of mandamus is an ‘extraordinary’ court order and should only be used in a narrow set of circumstances,” McCready’s motion reads. It states although the Harris motion includes the requirements set out by federal law as to a writ of mandamus, he does not satisfy them.

In the original request, the Harris campaign stated if the NCSBE cannot certify the race because it was dissolved, executive director Kimberly Strach should do so.

The NCSBE’s response explained Strach would not be required to do so, as it is the board’s responsibility, and that the board itself does not have the legal responsibility to do so until the investigation is complete.

The response from the board and motion for dismissal also stated because the U.S. House of Representatives indicated it will not seat Harris until the investigation is complete, Harris is not “legally entitled” to the seat, and therefore a writ of mandamus would be inappropriate.

The Harris campaign disagrees, saying in a memo supporting the petition, “Not only does Dr. Harris have a clear legal right to a Certificate of Election, but the State Board also is under a clear legal obligation to issue that Certificate. More specifically, the State Board would not be justified calling for a new election under these circumstances.”

Former special counsel for the North Carolina General Assembly Gerry Cohen said there may be some aspects of Harris' argument the court would consider, but others — such as the assertion that because the state board was declared unconstitutional therefore its decision to not certify the race is also — don’t hold water.

Fellow political scholar Michael Bitzer said he doesn’t think the court will weigh in on the case until the investigation is completed.

No hearing has been set for the case.

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